Week in Review (May 29, 2018)

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Week of:                      May 21, 2018
Publication Date:       May 29, 2018

From the First Appellate District –

  • The People v. Joshua J. Williams; where the court of appeals affirmed the trial court’s denial of Mr. Williams’ petition for re-sentencing under Proposition 47, where he was previously convicted for receiving a stolen vehicle. The court held that because Mr. Williams had not established that the value of the stolen property was valued at less than $950, the petition was properly denied without prejudice to refiling.
  • Professional Collection Consultants v. Robert M. Lujan; in a partially published case, the court of appeals held that when Professional Collection Consultants attempted to collect a debt owed by Mr. Lujan, the cardholder agreement that required Mr. Lujan repay his credit card debt was governed by Delaware’s three-year statute of limitations rather than California’s four-year statute of limitations when there was an express choice of law provision for Delaware law and “no fundamental policy of California is offended by applying Delaware’s somewhat shorter statute of limitations.” Accordingly, judgment in favor of Mr. Lujan on the issue of his debt was affirmed.
  • Ada Abed v. Western Dental Services, Inc.; the court of appeals reversed the trial court’s entry of judgment in favor of Western Dental Services on an employment claim which was entered based on Ms. Abed’s failure to file a job application. The court held that Western Dental could be held liable for sex discrimination by lying to Ms. Abed in telling her no dental hygienist position was available because they did not want to hire Ms. Abed, who was pregnant at the time she was told this.  Further, the court held that “it is hardly surprising that Abed did not seek a job there once she discovered she had been lied to… Western Dental [cannot] escape liability for past discriminatory acts merely because Abed did not demonstrate an ongoing interest in becoming a dental assistant by applying for similar positions, including in offices that were inconveniently located.”
  • The People v. Reginald Brown; where the court affirmed the conviction of Mr. Brown on various acts of sexual abuse and lewd acts upon children under the age of 14, including Jane Does 1, 2, and 3. On appeal Mr. Brown argued that the conviction for crimes against Jane Doe 3 should be reversed on statute of limitations grounds, as his last sexual act against her occurred in 1994, when Jane Doe 3 was around 13 years old.  The court held that the statute of limitations was tolled under a specific tolling provision, as Jane Doe 3 satisfied all of the tolling elements, including that (1) she was under 18 when she was offended against, (2) the statute of limitations expired, (3) the offense involved substantial sexual conduct, and (4) there was independent evidence corroborating the allegation.
  • Charles T. Jensen et alterius v. City of Santa Rosa [Real Party in Interest] Social Advocates for Youth; the court of appeal affirmed the City of Santa Rosa’s mitigated negative declaration under the California Environmental Quality Act for a project that would turn a defunct 69-bed hospital into a youth facility housing 63 young adults. Jensen and the other nearby residents opposed to the conversion argued that the City should have conducted a full environmental impact report because they expect that there will be increased traffic noise, and the residents will also make additional noise.  The court considered that the opponents to the project based their noise calculations on a “hard-to-grasp methodology [which] appears to require us to compare the highest possible predicted noise levels from the outdoor activities to appellants’ own calculated maximum allowable noise levels, rather than comparing an average noise value… with the base levels identified in the City Code.”
  • The People v. Justin Brooks; the court of appeals affirmed Mr. Brooks’ conviction for burglary and the order of restitution including security improvements, holding that the trial court’s inclusion of Mr. Brooks’ prior, uncharged, offenses did not constitute prejudicial error, and that California’s restitution laws generally permit any reasonable restitution that is corrective and equitable.
  • The People v. Jeremy Simms; where the court of appeals vacated the trial court’s determination of Mr. Simms’ Proposition 47 petition, holding that the trial court deprived Mr. Simms of his right to be present for the determination of eligibility.

From the Second Appellate District –

  • Sandra Diaz et alterius v. Grill Concepts Services, Inc. et alterius; where the court of appeals affirmed entry of judgment in favor of Ms. Diaz, holding that employers are subject to “waiting time” penalties and are considered to be “willfully” failing to make proper payments when they suspect that they should have paid, but didn’t, then make unreasonable arguments regarding the law being unconstitutionally vague. Additionally the court held that the trial court correctly determined that it did not have discretion to waive the waiting time penalties.
  • Salima Multani v. Evelyn Knight; in a commercial landlord-tenant dispute, the court of appeals held that when a tenant refuses to pay rent, and is in the process of being evicted, they cannot properly allege causes of action stemming from damages caused by a sewage backup that was not caused by any acts of omissions by the landlord, as the tenant had no legal right to be in possession of the property, the landlord had no further contractual or economic duties stemming for damages caused by the sewer backup.
  • The People v. Roderick Washington; where the court of appeals reversed the trial court’s summary denial of Mr. Washington’s petition for reclassification of his burglary conviction under Proposition 47. The court held that the trial court erred in its summary denial because Mr. Washington submitted prima facie evidence that he had stolen less than $950 in property, which requires further inquiry into the petition.

From the Third Appellate District –

  • Terri Raines v. Coastal Pacific Food Distributors, Inc.; when Ms. Raines was terminated, she filed various employment claims including age and disability discrimination and failure to provide accurate wage statements. Raines causes of actions were all adjudicated in favor of Coastal Pacific due to Ms. Raines failure to provide a triable issue of fact as to injury.  The court of appeal agreed with the trial court’s determination, except for Ms. Raines cause of action under the Private Attorneys General Act, where the court of appeal reversed the trial court, and held that civil penalties awardable under such a cause of action do not necessarily require an injury when the purpose of the cause of action is to prevent and punish violations of the law, and not necessarily compensate a plaintiff for an injury.

From the Fourth Appellate District –

  • J.N. v. The Superior Court of Orange County [Real Party in Interest] The People; J.N. petitioned the court of appeals for a writ of mandate reversing the juvenile court’s determination that he was not suitable for treatment in the juvenile court pursuant to the requirements of the recently passed Proposition 57. Here, the court of appeals reversed the juvenile court’s determination, holding that in its review of the five statutory factors as to whether J.N. should be tried as an adult, the court abused its discretion making findings on two of the factors that were not supported by substantial evidence, specifically the circumstances and gravity of the charged offense, and whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction.
  • The People v. Peter Balov; where the court of appeals affirmed the trial court’s denial of Mr. Balov’s request to suppress the results of a blood test, which demonstrated he was driving while intoxicated at above the legal limit. The court held that the arresting officer properly offered Mr. Balov the option of either taking a blood test or a breath test, and Mr. Balov consented to the blood test.  The officer did not ‘coerce’ Mr. Balov by failing to inform him about the statutory consequences of refusing to submit to either the blood or breath test.
  • In re Albert Lugo Ruedas; on a habeus corpus writ seeking the retroactive application of the California Supreme Court decision People v. Sanchez (2016) 63 Cal. 4th 665, regarding his own conviction for gang related crimes, the court of appeal denied Mr. Ruedas’ petition, holding that Sahnchez is not retroactive pursuant to the standards for retroactivity set forth in Teague v. Lane (1989) 489 U.S. 288, or even under the more lenient standards described in Stovall v. Denno (1967) 388 U.S. 293, or Linkletter v. Walker (1965) 381 U.S. 618.
  • D.C. Randall, Jr. v. Ditech Financial, LLC; where the court of appeal reversed and remanded the trial court’s sustaining a demurrer without leave to amend on a wrongful foreclosure action. The court held that the second amended complaint was improperly sustained without leave to amend because the facts could be amended to plead a cause of action for unfair or unconscionable debt collection practices under a federal cause of action.  The court of appeal reached its decision based in part on new facts presented to the court on appeal that were not presented to the trial court.
  • The People v. Israel Soto; the court of appeals affirmed the trial court’s denial of Mr. Soto’s petition under Proposition 47 for re-sentencing. Both the trial court and the court of appeal held that Mr. Soto’s conviction for theft from an elder was categorically precluded from relief under Proposition 47, and expressed hesitance at the possibility of converting every possible aggravated form of theft into crimes subject to re-sentencing under Proposition 47.
  • In re E., a Person Coming Under the Juvenile Court Law [OR] The People v. E.P.; where the court of appeals reversed the trial court’s adjudication on E.P.’s conviction of burglary and receiving stolen property. The court agreed with E.P. that Proposition 47’s reclassification of the stolen property cause of action into a shoplifting misdemeanor requires reversal of the burglary cause of action, and that E.P. could not be charged with both receiving stolen property and the theft of that same property.
  • Yvonne Reid et alterius v. City of San Diego et alterius; where the court of appeals affirmed the City’s demurrer without leave to amend on Ms. Ried’s putative class action for “an illegal hotel tax” as both time barred under the statute of limitations and as failing to state a cause of action. The case involved the interpretation of San Diego’s municipal code as between a 30-day statute of limitations and a 60-day statute of limitations, and involved a prior litigation on substantially the same issue in 2012 that was ultimately rendered moot in an ordinance amendment in 2016.

From the Fifth Appellate District –

  • In re the Marriage of Leslie P. and Robert D. Rodriguez [OR] Leslie P. Rodriguez v. Robert D. Rodriguez [Respondent] Stanislaus County Department of Child Support Services; where the court of appeals affirmed child custody payments in the amount of $1,273 for the Rodriguez’s three children. Rodriguez had appealed on the basis that the trial court failed to correctly calculate child support by failing to take into account his computing business’ depreciation of assets and by deviating from the child support guidelines without adequate evidentiary support.  The court held that the tax deduction was properly considered and added back into the calculation for child support purposes by the trial court, and that the special circumstances involving the three children, all adopted and requiring 24-hour support for their medical conditions, justified the deviation from the guidelines.
  • John Doe, a Minor, et cetera v. Good Samaritan Hospital; the court of appeals reversed the entry of judgment in favor of Good Samaritan Hospital in a case involving the standard of supervision the Hospital was obliged to provide to the Doe Plaintiff as a patient in the psychiatric unit, when he was placed in a room with an involuntarily admitted minor patient when Doe was subsequently sodomized by the involuntarily admitted patient. The appeal considered whether the Hospital’s conclusory expert witness declaration, which was unopposed on summary judgment, was sufficient to maintain their right to adjudication.  The court concluded that because the Hospital’s expert witness failed to specifically state the facts, standards, and circumstances that ultimately led to her conclusion that the Hospital was not negligent, judgment was not appropriate, and that the trial court should instead deny adjudication.

From the Sixth Appellate District –

  • Forrest Huff v. Securitas Security Services USA, Inc.; where the court of appeals affirmed the trial court’s grant of a new trial to Mr. Huff on an employment action under the Private Attorneys General Act, when he had failed to prove that he was personally injured by one of the multiple alleged labor code violations. The court of appeals held that Private Attorneys General Actions merely require that the person bringing the action “be brought by an employee ‘against whom one or more of the alleged violations was committed,’ a clear expression that the Legislature intended that a PAGA plaintiff be affected by at least one, but not necessarily all, of the violations alleged in the action.”
  • The People v. Timothy J. Miller; where the court of appeals upheld the trial court’s denial of Mr. Miller’s petition for a certificate of rehabilitation when the authorizing statutes only permit such certificates to issue when the petitioner has lived within the State of California for the five year period immediately preceding the petition, and Mr. Miller had filed his petition from outside of the state.
  • The People v. Andrew Marshall Berg; where the court affirmed the conviction of Mr. Berg on his possession of methamphetamine while present in the Monterey County Jail. The court held that Mr. Berg could not introduce evidence of his voluntary intoxication two days prior, upon his arrest, to negate the presence of general criminal intent.

Supreme Court – Roundup

This Week, the Supreme Court published 4 cases, including:

  • The People v. Floyd Daniel Smith; the Supreme Court affirmed judgment and penalty against Mr. Smith on a death penalty appeal from his conviction on one count of murder with special circumstances of lying in wait and two counts of attempted voluntary manslaughter in 1994 when Mr. Smith committed a murder in revenge for the killing of his friend, Manuel Farias. The decision was affirmed in its entirety.
  • Delano Farms Company et alterius v. California Table Grape Commission; in determining whether promotional speech generated by a compelled-subsidy program amounts to government speech, and whether the speech violates Delano Farms own rights, the Supreme Court held that the generic promotional speech activities here are government speech because there were sufficient mechanisms of government control over the message and composition of the California Table Grape Commission that it could properly be ascribed to the government of the State of California.
  • Facebook Inc. et alterius v. The Superior Court of the City and County of San Francisco [Real Party in Interest] Derrick D. Hunter et alterius; Mr. Hunter and other defendants in a murder case sought public and private communications from Facebook. When Facebook moved to quash the subpoena under the federal Stored Communications Act, the trial court denied Facebook’s motion to quash and the court of appeals granted the motion to quash.  Here, the Supreme Court partially granted and partially denied the motion to quash, holding that any communications that were designated as public, and were not direct one-on-one communications fell under the lawful consent exceptions to the Act, and should be produced.
  • In re Robert Lewis, Jr.; where the Supreme Court granted Mr. Lewis’ writ on habeus corpus, holding that his intellectual disability makes him ineligible for the death penalty.

In the Supreme Court’s Weekly Summary of Accepted Cases, the court has announced that 5 cases were accepted this week:

  • In re Humphrey; where the Supreme Court will consider whether (1) the Court of Appeal erred in holding that principles of constitutional due process and equal protection require consideration of a criminal defendant’s ability to pay in setting or reviewing the amount of monetary bail, (2) In setting the amount of monetary bail, may a trial court consider public and victim safety or must it do so, and (3) under what circumstances does the California Constitution permit bail to be denied in non-capital cases?
  • In re White; addressed one of the issues raised by In re Humphrey, where the court will consider under what circumstances does the California Constitution permit bail to be denied in non-capital cases.
  • People v. Crockett; where the court will review whether, under the “natural and probable consequences” doctrine, an aider and abettor may be properly convicted on the charge of premeditated attempted murder.
  • People v. Garcia; where the court accepted review on the question of whether a trial court may properly impose a criminal laboratory analysis fee and a drug program fee based on a defendant’s conviction for conspiracy to commit certain drug offenses.
  • People v. Henderson; which will address the question of whether a trial court abuses its discretion by ordering defendant to pay restitution to cover the cost of the victim’s increased residential security measures, although defendant was not convicted of committing a violent felony.

Week in Review (May 21, 2018)

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Week of:                      May 14, 2018
Publication Date:       May 21, 2018

From the First Appellate District –

  • Kerrie Reilly v. Marin Housing Authority; the court of appeals upheld the trial court’s sustaining a demurrer in favor of Marin Housing Authority, ultimately terminating Ms. Reilly’s Section 8 housing payments due to Ms. Reilly’s failure to make payments to Marin Housing Authority under a payment plan when she received money through the In-Home Supportive Services program due to her severely disabled daughter. Reilly challenged the payment plan’s calculation of her income as improperly including the payments from IHSS, but both the trial court and the court of appeals agreed that the IHSS payments were income rather than reimbursements.
  • The People v. Lonnie James Kerley; where the court of appeals upheld Mr. Kerley’s conviction on the second degree murder of his former girlfriend, Danna Denver, when the evidence at trial showed that he had a long history of physical abuse, and the trial court had not committed any prejudicial error.
  • The People v. Matthew Enrique Meza; where the court of appeals upheld the trial court’s decision permitting the admittance of a blood test taken from Mr. Meza without a warrant, but cautioned the court in holding that exigent circumstances were not demonstrated in this case that prevented a warrant from being obtained when two hours passed between the accident and the blood draw. The error was nevertheless held to be constitutionally harmless here when a doctor testified that the blood alcohol content of Mr. Meza was 0.128 percent when it was drawn by the hospital 40 minutes after the accident.
  • The People v. Gregory Hall; here, the court of appeals reversed Mr. Hall’s conviction on first degree murder with personal use of a knife when the trial court improperly allowed in evidence of a prior misdemeanor conviction where Mr. Hall had threatened a person with a large knife. The error occurred when the trial court reversed itself after determining the misdemeanor was likely more prejudicial than probative, and the prosecutor improperly argued in closing statements that the prior misdemeanor was evidence of Mr. Hall’s character rather than using the admitted evidence merely for impeachment purposes.

From the Second Appellate District –

  • The People v. Jose Antonio Espinoza; where the Court of Appeals affirmed the conviction of Mr. Espinoza on drug charges and denied Mr. Espinoza’s challenge to an expert’s identification of certain drugs as methadone and clonazepam pills based on the internet website ‘Ident-A-Drug,’ which the court held fell within the published compendium exception to the hearsay rule.
  • Shelly Albert v. Truck Insurance Exchange; in an underlying case, Ms. Albert’s neighbor had sued her for erecting a fence partially blocking a road that served as an easement to her neighbor’s property. When Ms. Albert tendered the claim to her homeowner’s insurance, it declined to cover the claim, and so Ms. Albert tendered the claim to her umbrella insurer.  While the trial court determined that the insurance contract did not cover this claim, the court of appeals held that the language of the insurance contract was ambiguous, and because is “may include non-physical invasions of rights in real property” the summary adjudication of the action should be reversed.
  • Thomas Darion Davis v. Appellate Division of the Superior Court of Los Angeles County [Real Party in Interest] The People; in seeking to suppress evidence gained through multiple warrantless searches that occurred during a traffic stop, the court of appeals held that Mr. Davis was required to describe with some specificity which search he was seeking to suppress out of the several that occurred. Without such information, Mr. Davis’ petition was denied by the court of appeals.
  • The People v. Alexander Jeffrey Vannesse; here, the court of appeals held that while a peace officer is required to inform a person arrested for driving under the influence of their option to take a blood test or a breath test, when an officer only informs the arrestee of the option of the blood test and they take it voluntarily, there is no violation of constitutional or statutory law prohibiting the use of the voluntarily provided test at trial. Vannesse’s motion to suppress such evidence was accordingly, denied.
  • Michael Benaroya v. Bruce Willis et alterius; in a payment dispute between Mr. Willis and Mr. Benaroya for a movie that was intended to be stared in by Mr. Willis and produced by Mr. Benaroya’s film company, Benaroya Pictures, the dispute proceeded to arbitration where the arbitrator awarded judgment against Benaroya Pictures and additionally determined that Mr. Benaroya was the alter-ego of Benaroya Pictures and subject to liability even as a non-signatory. Benaroya petitioned the trial court to vacate the judgment as to him personally, arguing that an arbitrator does not have the authority to make a determination as to alter-ego.  While the trial court affirmed the arbitration decision, the court of appeals reversed and remanded with instructions to vacate the award against Mr. Benaroya individually, in doing so the court of appeals held that “while the relevant JAMS rule here permits an arbitrator to determine whom among signatories to an arbitration agreement are proper parties for the dispute to be arbitrated, the rule cannot (and does not) permit the arbitrator to determine whether a nonsignatory to the arbitration agreement can be compelled to arbitrate.”

From the Third Appellate District –

  • The People v. Michael Williams; the court of appeals reversed Mr. William’s conviction for the first degree murder of his wife by stabbing her twice in the neck, causing her to bleed to death. The court of appeals held that the trial court impermissibly allowed in evidence underlying a prior conviction from 1992 for shooting with intent to kill in Oklahoma to be used by the prosecution to argue premeditation in the instant case.  Due to the scant relevance to the fact of this case and the significant prejudice of the introduction of the underlying facts, the court of appeals reversed and remanded for a new trial.
  • Charles E. Yeager et alterius v. Peter Holt et alterius; in a case predicated on a dispute between attorney’s fees owed by and between an attorney and a client, the trial court and the court of appeals both denied Mr. Holt’s Anti-SLAPP motion on the grounds that the Yeager’s compliant is fundamentally about the legal malpractice associated with the prior litigation on attorney’s fees, and is not a suit designed to punish speech. While the merits of the action itself may be “frivolous, vexatious, or untimely (based on the date of the termination of the attorney-client relationship), as Holt variously contends, that does not mean it chills expressive conduct.”

From the Fourth Appellate District –

  • Jorge Fierro et alterius v. Landry’s Restaurant Inc.; where the court of appeals reversed and remanded the trial court’s sustaining a demurrer on Mr. Fierro’s wage and hour claims on the grounds that the action was barred by a prior class action involving substantially the same issues. On review the court of appeals held that because the class action was merely ‘dismissed’ the dismissal does not act as res judicata precluding a later action by Mr. Fierro.
  • Carl Taswell, M.D. v. The Regents of the University of California; Dr. Taswell alleged that he was retaliated against for whistleblowing activities related to patient safety in the brain imaging center of UC Irvine. Taswell received a full and fair hearing before the administrative board of the UC system, but ultimately lost his appeal.  Rather than seeking an administrative writ, Dr. Taswell instead filed separate litigation in the superior court.  On appeal from dismissal by the trial court, the court of appeals held that Dr. Taswell was not required to seek a writ of mandamus to challenge the University’s rejection of his retaliation claims, and that he was authorized by statute to file the instant litigation in superior court.
  • In re Marriage of Linda M. and Bryan S. Marshall [OR] Linda M. Marshall v. Bryan S. Marshall; where the court of appeals affirmed the trial court’s division of assets in a divorce, particularly a 2006 community debt owed to the IRS on a capital gains liability and proceeds on a disability insurance policy that was purchased by the community and was intended to serve as retirement income. Accordingly, the court of appeals affirmed the trial court’s determination in favor of Mr. Bryan Marshall.
  • In re Nicandro Galaviz on Habeus Corpus; the court of appeals granted Mr. Galaviz’s petition for writ of habeus corpus. In 1996 Mr., Galaviz was committed to a term of 60 years to life on drug possession and assault charges, and after the trial court determined that he was incompetent to stand trial.  At the instant habeus corpus hearing, the court of appeals held that the 1996 commitment had improperly determined Mr. Galaviz’s incompetence to stand trial by failing to hold a competency hearing, and that absent evidence from 1996 that Mr. Galaviz was incompetent at the time of that trial, current evidence that he is presently incompetent to stand trial cannot prevent him from withdrawing his plea of not guilty by reason of insanity.
  • Duncan E. Prince v. Invensure Insurance Brokers, Inc. [And Cross-Defendant] ERM Insurance Brokers, Inc.; in a business dispute between three former partners in an insurance company, a jury found in favor of one of the partners who left the insurance firm, determining that the other partners had failed to pay him amount due and owing from an older transaction merging Prince’s company with Investsure Insurance Brokers. After returning a judgment of over $600,000.00, the trial court then denied Prince’s attorney’s fees and expert witness costs.  The court of appeals ultimately affirmed the jury’s verdict, but reversed and remanded on the issues of attorney’s fees and costs, finding that Prince had submitted a valid, and rejected, settlement offer under Code of Civ. Proc. §998, thereby entitling Prince to attorney’s fees and expert costs.

No published opinions from the Fifth or Sixth Appellate Divisions.

Supreme Court – Roundup

This Week, the Supreme Court published 3 cases, including:

  • United Riggers & Erectors, Inc. v. Coast Iron & Steel Co.; where the Supreme Court held that a direct contractor cannot withhold payments to a subcontractor for completed work when there exits a good-faith dispute regarding other work. The case was ultimately decided as a matter of the statutory construction of Civil Code Section 8814, where the court ultimately determined that the legislature did not create a broad statutory right to withhold payments from subcontractors, but rather that the purpose of the statute was intended to be a limited remedial exception to the general purpose of paying subcontractors for the work they perform.
  • The People v. Jesus Manuel Rodriguez and Edgar Octavio Barajas; where the Supreme Court acquitted Mr. Barajas on his convictions for murder, conspiracy to commit murder and participation in a street gang upon the Attorney General’s concession that accomplice testimony was not sufficiently corroborated to maintain the convictions, and remanded the issue of Mr. Rodriguez’s case to the court of appeals to provide him an opportunity to make a record as to his youthful offender parole hearing in 25 years, with his constitutional challenge to his 50 years to life sentence deemed moot upon the enactment of the new statutory schema for youthful offenders.
  • The People v. Feliz Corral Ruiz II; where the Supreme Court affirmed the court of appeal’s determination that a conviction for conspiracy to transport a controlled substance may properly be punished by the imposition of criminal laboratory analysis fees due to a portion of the Penal Code that imposes persons convicted of conspiring to commit a felony in the same manner and to the same extent as is provided for the punishment of that felony.

In the Supreme Court’s Weekly Summary of Accepted Cases, the court has announced that 6 cases were accepted this week:

  • Gonzalez v. Mathis, S247677. Petition for review after the Court of Appeal reversed the judgment in a civil action.  This case includes the following issue:  Can a homeowner who hires an independent contractor be held liable in tort for injury sustained by the contractor’s employee when the homeowner does not retain control over the worksite and the hazard causing the injury was known to the contractor?
  • People v. Anderson, S248208. Petition for review after the Court of Appeal modified and affirmed a judgment of conviction of a criminal offense.  The court ordered briefing deferred pending decision in People v. Ruiz, S235556 (#16-312), which presents the following issue:  May a trial court properly impose a criminal laboratory analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) and a drug program fee (Heath & Saf. Code, § 11372.7, subd. (a)) based on a defendant’s conviction for conspiracy to ommit certain drug offenses?
  • Duchan v. Los Angeles Unified School Dist., S247573. Petition for review after the Court of Appeal affirmed an order granting in part a special motion to strike in a civil action.  The court ordered briefing deferred pending decision in Wilson v. Cable News Network, Inc., S239686 (#17-83), which presents the following issue:  In deciding whether an employee’s claims for discrimination, retaliation, wrongful termination, and defamation arise from protected activity for purposes of a special motion to strike (Code of Civ. Proc., § 425.16), what is the relevance of an allegation that the employer acted with a discriminatory or retaliatory motive?
  • People v. Esquivel, S247832. Petition for review after the Court of Appeal remanded and affirmed a judgment of conviction of criminal offenses.  The court ordered briefing deferred pending decision in People v. Canizales, S221958 (#14-134), which presents the following issue:  Was the jury properly instructed on the “kill zone” theory of attempted murder?
  • People v. McDuffy, S247616. Petition for review after the Court of Appeal dismissed as moot an appeal from a judgment of conviction of criminal offenses.  The court ordered briefing deferred pending decision in People v. Mendoza, S238032 (#17-32) and People v. Padilla, S239454 (#17-34), which present issues as to the requirements under Montgomery v. Louisiana (2016) 577 U.S. __, 136 S.Ct. 718, 193 L.Ed.2d599, and Miller v. Alabama (2012) 567 U.S. __, 132 S.Ct. 2455, 183 L.Ed.2d 407, for imposing a sentence of life imprisonment without possibility of parole on a juvenile offender.
  • People v. Wallace, S247488. Petition for review after the Court of Appeal affirmed a judgment of conviction of criminal offenses.  The court ordered briefing deferred pending decision in People v. Bullard, S239488 (#17-64), which presents the following issue:  Does equal protection or the avoidance of absurd consequences require that misdemeanor sentencing under Penal Code sections 490.2 and 1170.18 extend not only to those convicted of violating Vehicle Code section 10851 by theft, but also to those convicted for taking a vehicle without the intent to permanently deprive the owner of possession?  (See People v. Page (2017) 3 Cal.5th 1175, 1188, fn. 5.)

Week in Review (May 14, 2018)

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Week of:                      May 07, 2018
Publication Date:       May 14, 2018

From the First Appellate District –

  • The People v. Benito Guzman; where the court of appeals affirmed the probation condition authorizing warrantless searches of Mr. Guzman’s electronic devices. The Court held that the probation condition was both necessary for compliance with the Sex Offender Caseload Conditions of probation, and for the safety of vulnerable minor children, as Mr. Guzman was charged on two felonies, and entered a pled guilty to one count of arranging a meeting with a minor for the purpose of committing a sexual offense.
  • Contractors’ State License Board v. The Superior Court of Contra Costa County [Real Party in Interest] Black Diamond Electric, Inc.; here the court of appeals issued a peremptory writ preventing Black Diamond from noticing the deposition of David R. Fogt, the Board’s Registrar of Contractors, and a high government official generally protected from having his deposition taken under California’s rules regarding “apex depositions.” The court held that Black Diamond had not identified any specific factual information that was only known by Fogt, and the deposition was noticed specifically to inquire about processes and legal information about the Board, making it improper.
  • The People v. Miguel Angel Torres; where the court of appeals affirmed the conviction of Mr. Torres on one count of second degree robbery causing great bodily injury, five counts of digital penetration, one count of sexual battery by restraint, and one count of forcible rape, finding no error in the admission of evidence or the prosecutions conduct. The court nevertheless remanded the case for resentencing, finding that the trial court erred in its determination that Proposition 36 (the Three Strikes Law) required consecutive sentencing; such discretion remains with the courts, and the sentence should be re-issued with the correct guidelines under consideration.

From the Second Appellate District –

  • The People v. Jeffrey Minifie; where the court of appeals affirmed the guilty verdict in multiple charges against Mr. Minifie related to his kidnapping a former girlfriend, leading police in a high-speed chase through downtown Los Angeles, and ultimately causing his former girlfriend’s death when he caused a head-on collision with another car. At issue on appeal was whether the trial court properly sentenced Mr. Minifie to multiple, consecutive, sentences for his crimes and the various enhancements when he was already being sentenced to an indefinite term.  The court held that rather than accept the 15 years-to-life reflected by the second degree murder charge, the trial court properly sentenced Mr. Minifie to 30 years, 8 months to life in prison, which encompassed all the definite terms for the crimes committed together with the enhancements, and the indefinite term for the murder charge.
  • Dave Pebley v. Santa Clara Organics, LLC, et alterius; in an appeal of an award for medical and economic expenses following a car accident, the Court of Appeals affirmed the award of $3,644,000.00 but modified the award of damages on two medical bills downward in order to match the amounts paid by Mr. Pebley’s insurance providers with the amount awarded. The modification downwards was $1,063.00.
  • The People v. Miguel Angel Jimenez; where the court affirmed the trial court’s modification of Mr. Jimenez’s conviction under Proposition 47. The court held that cashing two checks, each valued less than $950, constituted shoplifting offenses subject to downward modification under Proposition 47, and not crimes of false pretenses that would have precluded the downward modification.
  • Lamar Advertising Co. v. County of Los Angeles et alterius; in 2008 a billboard owned by Lamar Adverting was blow over by the wind. When Lamar Advertising rebuilt the billboard it was cited by the County for violating county ordinances, which banned billboards in the area that had not received a permit between the adoption of the ordinance in 1995 and the end of the amortization period in 2000.  Lamar had not sought the permit, did not receive a permit, and therefore rebuilding the billboard in a banned area was impermissible and both the trial court and court of appeals upheld the violation.
  • Olvin Maldonado et alterius v. Epsilon Plastics, Inc.; here, the court of appeals affirmed a verdict against Epsilon on wage and hours claims based on an improperly adopted Alternate Work Schedule, but remanded to the trial court for recalculation of damages based on slightly different overtime premiums, calculations for waiting time penalties, and elimination of the wage statement penalties imposed.
  • The People v. Akintunde Hakeem Ogunmowo; where the court of appeals reversed the trial court’s denial of Mr. Ogunmowo’s petition to vacate his 1989 conviction for possession for sale of a controlled substance. The court of appeals held that Mr. Ogunmowo’s declaration that his former defense attorney’s advice that his immigration status would not be adversely affected by a guilty plea was sufficient to establish that Mr. Ogunmowo experienced prejudice, and is entitled to vacate his conviction.
  • Ron Hacker, as Trustee, et ceteta v. Homeward Residential Inc., et alterius; the court of appeals reversed the trial court’s sustaining a demurrer against Mr. Hacker, holding that the trial court abused its discretion when it denied Mr. Hacker’s request for leave to file an amended complaint, as there exists a possibility that Mr. Hacker can cure the deficiencies by alleging that a deed transfer was void, and thereby establish standing to pursue the wrongful foreclosure litigation.
  • The People v. Jimmy Valenzuela; where the court of appeals affirmed the guilty verdict of the jury on the two murder charges and special circumstances, but remanded to the trial court to consider whether the sentence should be modified regarding the gun enhancements.
  • Doris Charles et alterius v. Sutter Home Winery, Inc. et alterius; where the court of appeals affirmed the dismissal on demurrer of Ms. Doris’ putative class action under the California Safe Drinking Water and Toxic Enforcement Act of 1986 for the alleged inclusion of carcinogenic arsenic in wine. The trial court held, and the court of appeals affirmed, that the wine maker had complied the safe harbor provision for alcoholic beverages by placing a warning on its bottles, and was therefore protected as a matter of law from the instant litigation.
  • Strategic Concepts, LLC v. Beverly Hills Unified School District; where the court of appeals reversed the jury verdict in favor of Strategic Concepts when the trial court erred in failing to instruct the jury on the application of the government code sections related to the prohibition of conflicts of interest in making public contracts and the requirement that certain contracts must be subject to competitive bidding. The court further concluded that Government Code Section 1090, prohibiting conflicts in public contracts, applies to independent contractors.

One case from the Los Angeles Superior Court’s Appellate Division, on an unlawful detainer matter:

Andy Hsieh v. Burton Pederson et alterius; where the appellate division reversed judgment on the pleadings in favor of defendants when the trial court had erred in finding that the case was filed prematurely.  The court agreed that plaintiff was only required to give defendants 3 days under the code, but that when he gave them 14 days, the calculation of days should have been determined as having expired four days prior to filing the litigation.  The case was therefore not premature, and the court reversed judgment.

From the Third Appellate District –

  • Randy Tindell et alterius v. Linda Murphy et alterius; this case is based on the sale of a home for $320,000 in 2004, and the subsequent inability of the Tindells to refinance their home when it was re-appraised in 2009 and determined to be a ‘manufactured’ home rather than a ‘modular’ home. In arguing that the defendants owed them a duty to have informed them of the status of the property, the court of appeals ultimately agreed with defendants and the trial court in holding that plaintiffs failed to state a cause of action against several of the defendants because the sellers had no duty to the Tindells, the sellers were not unjustly enriched when the 2004 appraisal was done by the Tindell’s mortgage lender, and there were no other inferences that could be drawn to support plaintiff’s causes of action in light of their allegations.
  • Bryan Blue et alterius v. California Office of the Inspector General et alterius; where the court of appeals reversed the trial court’s denial of an Anti-SLAPP motion. The court held that the plaintiff’s causes of action arising out of the Inspector General’s investigation of the use of force at a prison, and denial of counsel during an interview of several prison guards, constituted a protected activity on the part of the Inspector General, and that the plaintiffs did not establish a likelihood of success because “a reasonable person in the plaintiffs’ position would not have so believed… [that they] were under investigation for any suspected misconduct… [t]hus, none of them had a reasonable basis to believe their interview with the OIG ‘could lead to punitive action’ against them.”
  • Han Jing Huang v. Tom Hanks [And 30 Other Cases]; where the court of appeals affirmed the dismissal of 31 cases filed by Mr. Huang alleging that various celebrities were utilizing mind reading facilities in Texas to make people stalk him, harass him, threaten him, using nano probes to attack him, and attacking his mouth by destroying the inner skin with bacteria ultimately causing him to ask a dentist to remove one of his teeth. The court of appeals held that courts have the inherent power to dismiss patently frivolous or vexatious litigation, and that such power was properly exercised here.

From the Fourth Appellate District –

  • In re the Marriage of G.C. and R.W. [OR] G.C. v. R.W.; in the dissolution of marriage between G.C. and R.W., the court of appeals upheld the trial court’s determination that the correct date for the domestic partnership under California law was 2009, because their 2004 domestic partnership in New Jersey was not substantially similar to California’s law, but reversed the trial court’s division of assets, holding that the interest generated on their shared residence belonged to the community and was not equitably divided.
  • Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism; the court of appeals applied the Supreme Court case Baral v. Schnitt (2016) 1 Cal.5th 376 in partially affirming and partially reversing the trial court’s denial of Morris Cerullo World Evangelism’s Anti-SLAPP motion, and held that the motion should be granted as to three of the paragraphs in Newport Harbor Office’s third amended complaint.
  • Christopher Alexander et alterius v. Scripps Memorial Hospital La Jolla et alterius; when a 70-year-old terminally ill cancer patient had an advance health care directive stating that she wanted all measures taken to extend her life, the trial court properly resolved the claims in favor of the health care defendants when there was no dispute that the medical techniques that the healthcare providers allegedly failed to use would have been ineffective at prolonging her life, and would have unnecessarily caused her to suffer prior to her passing.
  • Alysia Webb v. City of Riverside; the court of appeals affirmed the trial court’s sustaining the City’s demurrer to Ms. Webb’s suit alleging violations of Propositions 26 and 218. The Court held that Webb did not file within the 120-day statute of limitations when the City allegedly transferred money from the electric utility reserve fund into the general fund without voter approval.  And that Webb could not establish that the transfer of funds constituted a ratepayer increase under Proposition 26 that would permit the litigation to continue on that basis.

No cases this week from the Fifth or Sixth Appellate Districts

Supreme Court – Roundup

This Week, the Supreme Court published 4 cases:

  • California Building Industry Association v. State Water Resources Control Board; in a dispute over whether the State Water Resources Control Board could modify a permit fee schedule on a two-member vote, and whether such a modification was impermissible under the Water Code and the State Constitution, the Supreme Court held that the vote to approve the fees was proper, the permitting fees were reasonably related to regulatory activities, and they did not violate the State Constitution.
  • The People v. Alfredo Perez, Jr.; where Mr. Perez petitioned for resentencing under Proposition 36, the Three Strikes Reform Act, the Supreme Court held that he was ineligible for the petition because substantial evidence did not support the trial court’s determination that he qualified for resentencing under the act because his last crime was committed with a “deadly weapon” because the crime occurred through the use of assault with a car, which qualifies as a deadly weapon because of the likelihood of great bodily injury.
  • The People v. Ennis Reed; in an automatic death penalty appeal, the Supreme Court affirmed the sentence for Mr. Reed’s multiple murders by use of firearms, finding that Mr. Reed’s arguments lacked merit. This case features a dissenting opinion authored by Justice Liu and joined by Justice Kruger, who considered that the prosecutions striking of several black jurors raised an inference of discrimination, and that the eyewitness identifications was problematic, as it was the principal evidence that linked Mr. Reed to the murders and should be subject to the type of screening that New Jersey and Oregon use for eyewitness testimony.
  • The People v. Steven Andrew Adelmann; where the Supreme Court resolved yet another procedural issue with Proposition 47, in holding that when a person whose case has been transferred to another county applies for resentencing under Proposition 47, that person must seek relief in the original sentencing court, in the county in which he was originally sentenced.

Week in Review (May 07, 2018)

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Week of:                      April 30, 2018
Publication Date:      May 07, 2018

Appellate Decisions – Summaries

From the First Appellate District –

  • The People v. Scott D. Flint; where the court of appeals remanded on the limited issue of permitting further argument before the trial court as to whether Mr. Flint, who was adjudicated to be a Sexually Violent Predator, had his equal protection rights violated when he was compelled to testify in the People’s case-in-chief because he is similarly situated to a person who was found not guilty by reason of insanity, and cannot be compelled to testify on that basis. In its analysis, the court of appeals considered that the record was insufficient to determine whether the case should be affirmed or denied under a similar case, People v. Curlee (2015) 237 Cal.App.4th 709, which was decided after the order compelling Mr. Flint to testify was entered.
  • In re Aaron J., a Person Coming Under the Juvenile Court Law [OR] The People v. Aaron J.; here, the court seeks to disentangle whether a minor who appears to fall under two applicable sections of the Welfare and Institutions Code should be treated as a dependent or as a ward. Ultimately, the court of appeals held that the trial court’s determination should be affirmed, as the trial court took the jurisdictional considerations under review, and made its decision based on the best interests of the child.
  • In re Juan R., a Person Coming Under the Juvenile Court Law [OR] The People v. Juan R.; the court of appeals upheld a probation terms that granted officer’s the ability to search Juan R.’s phone for social media, text, and other communications in an effort to monitor Juan’s activities for further acts of violence and for communications with his co-conspirators. Juan R. was originally placed under the wardship of the court following a crime where he chased down a man, C.C., stole his mobile phone and wallet, and violently attacked C.C. together with several co-conspirators.

From the Second Appellate District –

  • The People v. Jesus Pedro Garcia; where the court struck the trial court’s sentencing a prior punishment to run consecutive to the new judgment as improper. Garcia’s new, four year prison term for carjacking will effectively supersede his prior term where he was sentenced under the Postrelease Community Supervision program, which is a middle ground between parole and prison.
  • County Line Holdings, LLC v. Janice M. McClanahan; the court reversed the trial court’s judgment in favor of defendant on a statute of limitations defense under the probate code when the defendant dies before satisfying the judgment. The basis of the reversal is the difference between a cause of action to enforce a lien, which has a one-year statute of limitations after the death of a debtor, and the enforcement of a judgment for a lien that was previously adjudicated, which remains enforceable and given priority.
  • The People v. Joseph L. Billingsley; where the court affirmed Mr. Billingsley’s conviction on attempted murder, but remanded in order for the trial court to reconsider the gun enhancements under Senate Bill 620’s new criteria.
  • La Mirada Avenue Neighborhood Association of Hollywood et alterius v. City of Los Angeles et alterius [Real Party in Interest] Target Corporation; in a partially published case, the court of appeals affirmed the trial court’s order awarding attorney’s fees in favor of La Mirada Avenue Neighborhood Association under the statute that provides for such rights when the litigation results in a significant benefit to the public. Here, the Neighborhood Association successfully halted the construction of a development that violated Los Angeles zoning laws and when the City Council did not have a substantial basis for granting variances that would have permitted the project to proceed.  Nor is the issue of attorney’s fees moot in the underlying litigation when the zoning laws thereafter changed to allow the project.
  • In re D., a Person Coming Under the Juvenile Court Law [OR] Los Angeles County Department of Children and Family Services v. Angelina A.; two-year-old D.L. was removed from her father’s care for having a loaded gun left in the 2 year-old’s closet, and placed in the care of her mother with visitation rights granted to the father. The court of appeals affirmed the trial court’s order, but reversed the trial court’s finding that there existed an “ongoing risk” because any future danger posed by loaded firearms was “entirely speculative.”

From the Third Appellate District –

  • The People v. Antoine Lamar Blessett; which was certified for partial publication on Mr. Blessett’s appeals the basis of the confrontation clause, which the court determined was waived for failure to object during trial, and on ineffective assistance of counsel grounds, as the defense counsel’s failure to object to background hearsay was reasonable and the remaining hearsay evidence was introduced through an expert. The court nevertheless remanded for consideration of Senate Bill 620 on gun enhancements.
  • The People v. Brady Dee Douglas; Ms. Douglas was convicted of the attempted murder of Jeffrey B., who had short-changed Ms. Douglas’ boyfriend, a male prostitute. On appeal, Ms. Douglas contended that she was denied a fair trial when the prosecutor used his peremptory challenges on the only two openly-gay jurors.  The court of appeals agreed and held that whether or not the prosecutor had a permissible purpose to dismiss those jurors, the taint of invidious discrimination in juror selection renders the entire process substantively unfair.  It should also be noted that this case featured a dissenting opinion by Justice Hull, who argued that the majority erred, as the jurors at issue specifically stated that they were biased against the People’s victim, who had not openly acknowledged his sexual orientation.  Justice Hull argued that the “mixed motive approach strikes the proper balance between protecting a defendant’s constitutional rights, preserving the public’s confidence in the fairness of our system of justice, and recognizing the institutional interest in the finality of judgments.”

From the Fourth Appellate District –

  • The People v. Joseph Bocklett; where the court of appeals affirmed the jury verdict adjudicating Mr. Bocklett a Sexually Violent Predator, a mental disorder, based in part on the multiple instances of sexual violence committed on minor children between 1971 and 1994. Bocklett argued that the tolling provisions of the relevant statute constituted an ex post facto punishment for prior crimes where he had already served his time, but the court of appeals relied on Hubbart v. Superior Court (1999) 19 Cal.4th 1138, to determine that the Sexually Violent Predator statute does not constitute ex post facto punishment, as the purpose is to protect the public in the present rather than punish a person for past acts.
  • Rae Weiler v. Marcus & Millichap Real Estate Investment Services, Inc. et alterius; Ms. Weiler alleged that Marcus & Millichap lost more than $2 million in investment funds. The parties engaged in arbitration but after years litigating the issue Ms. Weiler could no longer afford to pursue the case in arbitration.  She therefore sought relief from arbitration, or an order requiring Marcus & Millichap to pay her share of the arbitration costs.  The trial court denied relief, but the court of appeals reversed and held that under Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, Ms. Weiler was entitled to a full hearing on her present ability to pay, and to relief if she could no longer pay.
  • The People v. Charles Wesley Brady; in a case related to assault with a deadly weapon, Mr. Bradley argues on appeal that the reasonableness of his self-defense should account for his medical conditions and past experiences that make it more likely for Mr. Bradley to misperceive a threat. The court of appeals, however, affirmed the conviction and stated that “Essentially, Brady argues that the relevant question is what a reasonable person with bipolar disorder, posttraumatic stress disorder, and his personal history would have done in the situation — i.e., what would a reasonable Brady do?  That, we think, is not the standard.”
  • Nielsen Contracting, Inc. et alterius v. Applied Underwriters, Inc. et alterius; the court of appeals affirmed the trial court’s denial of a motion to compel arbitration when the contract was unenforceable. Specifically, in an insurance contract for employer’s compensation, the insurance provider cannot enforce an arbitration agreement that was not filed with the regulatory agencies, as is what occurred here.
  • Marisa Hernandez v. Rancho Santiago Community College District; where the court of appeals affirmed judgement against Rancho Santiago Community College District for failing to provide reasonable accommodations for an injured employee when they fired her while on an approved leave of absence from her injuries. The Community College argued that because Ms. Hernandez was on a one year probation and the leave of absence would have allowed her to become a permanent employee without working for the requisite one year, they were justified in terminating her.  However, the trial court and the court of appeals found that this argument lacked merit, as the Community College could have taken any number of actions to accommodate Ms. Hernandez, not least of which would be extending the evaluation period for the time she was on leave.
  • Lisa Williams et alterius v. Moulton Niguel Water District et alterius; the court affirmed judgment in favor of the Water District when homeowners filed suit on the basis of an added chemical damaging their copper pipping. The court held that the chemical was added pursuant to all statutory and regulatory standards, and that the type of damage suffered by the plaintiffs did not fall within the ambit of eminent domain or inverse condemnation because plaintiffs voluntarily purchased water from the Water District and brought the public water into their private piping systems.

From the Fifth Appellate District –

  • Erik J. Hansen et alterius v. Sandridge Partners, L.P. et alterius; in a land dispute between adjacent farm owners, the court held that because the Hansen plaintiffs could not establish the elements of adverse possession because they had not paid taxes on the disputed land for the relevant period of time, they could not employ legal sophistry to gain such possession under the guise of a prescriptive easement when they sought to continue to use the disputed land as farmland until their crops, pistachio trees, died.
  • James Davis v. County of Fresno et alterius; the court of appeals reversed judgment against Mr. Davis, who is a correctional officer in the juvenile detention system that was dismissed from employment for insubordination, discourteous treatment of a subordinate, wrongfully assuming supervisorial duties over his wife despite several admonitions to the contrary, exaggerating the hours he worked on multiple time cards, and other misconduct. The court found that he was not granted a fair hearing because in the relevant hearing the administrative court considered evidence that was not provided to Mr. Davis, and thus Mr. Davis was denied the ability to contest the evidence ultimately relied upon.
  • Arnaudo Brothers, L. et alterius v. Agricultural Labor Relations Board [Real Party in Interest] United Farm Workers of America; where the court denied the Arnaudo Brother’s petition for a writ of administrative review, finding that the administrative board properly exercised its discretion in issuing relief to the United Farm Workers requiring that the Arnaudo Brothers provide information and engage in the interactive process with the union.

Finally, From the Sixth Appellate District –

We have no cases.

Supreme Court – Roundup

This Week, the Supreme Court published cases:

  • Dynamex Operations West, Inc. v. The Superior Court of Los Angeles County [Real Parties in Interest] Charles Lee et alterius; where the Supreme Court held that truck drivers who did not employ others and who only worked for Dynamex were properly employees of Dynamex when applying what is commonly known as the “ABC” test where to establish the existence of an independent contractor relationship the proponent of the relationship establishes “(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under contract for the performance and such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.”
  • The People v. Juaquin Garcia Soto; on the issue of whether voluntary intoxication can create a defense to murder, the Supreme Court held that while a jury may consider voluntary intoxication when determining whether the defendant had the intent to cause death, it could not be used to determine whether the person believed he needed to act in self-defense.

In the Supreme Court’s Weekly Summary of Accepted Cases, the court has announced that no cases were accepted this week.